Reimer v Kafue Pty Ltd [No 2][2025] QCA 74

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Brown JA and with the orders proposed by her Honour.
2. [2]
   FLANAGAN JA:  I agree with Brown JA.
3. [3]
   BROWN JA:  On 7 February 2025 this Court refused Mr Reimer’s application for leave to appeal against a decision of the QCAT Appeal Tribunal (QCATA).  QCATA had refused an application to stay a decision and to allow an extension of time to file an application for leave to appeal.
4. [4]
   The parties have made submissions as to costs.  The respondent, Kafue Pty Ltd as trustee for the SA Patel Family Trust (Brighton Caravan Park), seeks costs of the application which it successfully opposed on an indemnity basis.  It claims indemnity costs on the basis that the respondent sent a letter of offer to the applicant on 4 October 2024 which Mr Reimer did not accept.  The respondent offered to settle the application of Mr Reimer on the basis that the application be dismissed with no order for costs.  The letter outlined the deficiencies that the respondent considered were fatal to Mr Reimer’s appeal for which he sought leave based on his notice of appeal.  In particular the respondent identified that the notice of appeal did not properly raise any question of law, which were the only questions that could be raised upon an appeal, and that it also raised matters that were not the subject of the decision sought to be appealed.  The respondent submits that the applicant’s failure to accept the offer was unreasonable and imprudent.
5. [5]
   The applicant resists the application for indemnity costs on the basis that it should be refused by the Court because:

   1. he is subject to financial hardship and he is the recipient of a disability pension and that is his sole source of income;
   2. he has already suffered significant personal and financial loss in the matter having lost his home, which was located at the caravan park;
   3. his attempt to seek justice was not frivolous or vexatious even though he had been unsuccessful;
   4. there were public interest considerations insofar as his case raised important issues regarding the rights of caravan park residents and the protection of vulnerable individuals in housing matters;
   5. he has sought to conduct the proceedings efficiently and respectfully; and
   6. an adverse costs order would have a chilling effect on access to justice for vulnerable individuals in similar situation.
6. [6]
   He seeks to have the Court make no order as to costs or alternatively minimise the costs order to reflect his circumstances in the interests of justice.
7. [7]
   In determining the appropriate order to make where a Calderbank offer is made, the principles were fairly summarised by Justice Applegarth (with whom Morrison JA agreed) in Ford v Nominal Defendant [No 2]^[1] in the following terms:

“The refusal to accept a Calderbank offer does not, of itself, warrant an order for indemnity costs.  The issue is whether refusal of the offer was unreasonable or imprudent.  A number of non-exhaustive factors have been identified in the authorities that may be relevant in determining whether a party’s rejection of an offer to settle was unreasonable.  They are:

1. the stage of the proceeding at the time of the offer;

2. the time allowed to consider the offer;

3. the extent of the compromise offered;

4. the offeree’s prospects of success (at the date of the offer);

5. the clarity of the terms of the offer; and

6. whether the offer foreshadowed an application for indemnity costs in the event of its rejection.” (footnotes omitted)

8. [8]
   Mr Reimer’s application was ultimately dismissed on the basis of the applicant’s failure to identify any question of law in his proposed ground of appeal.
9. [9]
   The letter offering to compromise the proceedings was made some seven weeks before the hearing of the application for leave and was open for acceptance for a period of 14 days.  That was a reasonable time for the offer to be accepted.  The offer outlined the basis upon which the respondent contended that the applicant’s application had no prospects of success in clear terms.  In particular it put Mr Reimer on notice that the notice of appeal suffered fatal deficiencies in not identifying a question of law which could be the subject of the appeal.  That view was ultimately vindicated by this Court’s decision to refuse leave.  The letter also put Mr Reimer on notice that the respondent would seek to claim costs on an indemnity basis if he did not accept the offer and leave to appeal was refused.  The respondent provided an estimate of their costs if the Court of Appeal assessed costs to be on a standard basis as being approximately $20,000 to $30,000, noting that indemnity costs would likely exceed the estimated standard costs.
10. [10]
    The offer was made by the respondent in clear terms.  The offer made by the respondent would have avoided Mr Reimer having to pay any of the respondent’s costs of the application and placed him in a better position than he was in after the application was determined.  Given the notice of appeal had failed to identify any question of law which could be properly the subject of the appeal, Mr Reimer’s application to this Court was doomed to fail.  It was in all of the circumstances unreasonable and imprudent for Mr Reimer to refuse the offer made by way of letter on 4 October 2024.
11. [11]
    While the matters raised by Mr Reimer in [5] (a)-(c) and (e) above may be accepted they do not demonstrate that his failure to accept the offer made was reasonable.  As to [5] (d), even if there was a broader interest outside of the parties in the contentions sought to be raised by Mr Reimer, that does not belie the fact that Mr Reimer did not satisfy the threshold requirement of identifying a question of law to be the subject of the appeal.  Without a question of law being identified, the application for leave was bound to fail.  Broader considerations affecting the grant of leave, such as whether the appeal involved an important point of principle, did not therefore arise.  As to (f), notwithstanding the difficulties faced by those not legally trained in representing themselves, the rules which this Court must apply in determining the question of costs are the same for every litigant whether legally represented or not.
12. [12]
    None of the matters outlined by Mr Reimer demonstrate that his failure to accept the offer made by the respondent in its letter was reasonable.
13. [13]
    The respondent has established that it is entitled to indemnity costs given its success in defending the application and the refusal of the offer made to resolve the application.
14. [14]
    In the circumstances the Court orders that the applicant:

1. Pay the respondent’s costs up until 18 October 2024 on a standard basis.
2. After 18 October 2024 pay the costs of the application on an indemnity basis.